4 Legal Issues J. 113 (2016)
Agamben's State of Exception in Context: A Critical Analysis with Regard to Post-9/11 Jurisprudence

handle is hein.journals/uklwetrew4 and id is 117 raw text is: 






Agamben's State of Exception in Context:

      A   Critical Analysis with Regard to

               Post-9/11 Jurisprudence


                     Stefanos Xenofontost



    The traditional juristic definition of the sovereign as 'he who
    decides on the exception', which has been introduced by the social
    and legal philosopher Carl Schmitt in Political Theology, arguably
    constitutes the clef de vofite which enables us to underpin the
    philosophy of the state of exception. Whereas exceptions of law
    under ordinary  circumstances operate within a predetermined
    constitutional order, which provides guidelines on how  these
    situations are to be dealt with, a state of emergency does not need
    an  existing legal order to function. Within this context, the
    sovereign has the ultimate power to transcend the legal order and
    impose such measures as deemed  necessary to confront the crisis
    and re-establish order and stability within the nation, usually by
    invoking the 'public good'. In Agamben's work, the concept of
    necessity has a fundamental  role in establishing the state of
    exception. It has been acknowledged that 'necessity creates its own
    law' and, occasionally, it constitutes the main justification for
    governments  to implement  their executive orders, albeit the
    transgression of the law. In the aftermath of 9/11, the United States
    faced an exceptional situation of national emergency in which it
    was  deemed  urgent to confront a new  kind of threat by any
    necessary means. More  than a decade on, and following similar
    events in other Western countries, it can be argued that the global
    legal and  political order of the  21st century has  changed
    dramatically, manifesting, what it is now evident, a permanent
    state of emergency.


    Keywords:   political theory, state of exception, 'force-of-law',
    post-9/1 1 jurisprudence


t LLM student in Public International Law, University of Leicester.

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